Our relationship with the Constitution today

Conversations around the Constitution have taken on an increasing sense of urgency, desperation even, in the face of deepening inequality and the fragility of some constitutional institutions. What is the relationship between the Constitution and our struggle to build a just society?

Contrary to recent populist claims, there has never been “constitutional triumphalism” in South Africa. Constitutionalists always knew the path ahead would be long, hard, and depend on future struggles. They knew because they are fighting and supporting those struggles daily, and they saw what a difference the Constitution made to the balance of power. Most constitutions around the world are conservative, preserving the current balance of power and distribution of resources. South Africa’s is not. It calls for the radical remaking of society — but it does not do the job for us.

The basic text of the Constitution has been richly fleshed out by thousands of court decisions — the Constitutional Court alone is fast approaching 1,000 decisions. The Constitution has also been given meaning by the daily actions of the executive and legislature giving meaning to particular provisions, and the meaning-making work of academics and society as a whole. Some beacons stand out: the end of the death penalty, same-sex marriage, securing antiretroviral drugs for HIV-AIDS, requiring a sitting president to pay back funds spent on his private residence.

We have built up a rich body of legal (and, at least to some extent, societal) norms relating to human rights and to the functioning of government and constitutional institutions. What have we achieved under the Constitution and how does it strengthen or weaken us in the struggles that confront us?

The reality of socioeconomic rights

While some claim — without any serious effort at empirical research — that socioeconomic rights in South Africa are hollow, this is less than a half-truth.

Socioeconomic rights have secured significant material impact in many instances beyond the well-travelled example of the Treatment Action Campaign. In a repudiation of the colonial and apartheid past of forced evictions, residents who face homelessness if evicted are now constitutionally protected. Many people witnessed the recent horrific violent eviction of a man bathing in his home in Cape Town, in which the courts intervened to reverse the eviction and compensate residents. But every week, evictions are regulated or prevented without media attention.

Multiply that picture with litigation that requires the state to ensure that people receive school textbooks or safe classrooms, water and electricity reconnection. All around us, perhaps we see too many of these situations remaining broken, rather than the successful constitutional interventions. We see the brokenness, not the progress or potential.

Today, all basic service provision (as inadequate as it may often be) rests on a constitutional foundation that ordinarily bars the state from cutbacks. The Constitution empowers us to demand more; to demand that the state does better. But we have to do the work to hold the state to account — the text does not magic it up.

We are reconceiving what property means under the Constitution. Already, section 25 demands redistribution and redress (and, by the way, never did require compensation for expropriation!). We have room under section 25 to redefine property law according to the social function of property, to redefine ownership. The Constitution gives us the tools, but what are we doing with them?

We have rich constitutional jurisprudence on equality that safeguards against discrimination from the state, but also private parties. And importantly, this jurisprudence permits (arguably requires) affirmative action. None of this exists in the US, the UK or most European constitutional systems that are considered by the constitutional law orthodoxy as “developed”. In these countries, affirmative action is barely legal and there is only the thinnest protection against discrimination. We have a powerful equality tool. But it does not use itself. It is for us to use it.

In a quarter-century, we have only just begun to test the emancipatory potential of the Bill of Rights.

Governance and institutions

As for constitutional institutions, the Constitution demands that they function well to realise human rights, that they are free of corruption and that they are led by people with integrity. Under the Constitution, courts have removed compromised prosecution heads, an unfit head of the Hawks and a head of police crime intelligence (now in prison for kidnapping and facing corruption charges) and played a role in the process to impeach a former president who resigned in the shadow of impeachment.

These victories were possible because our Constitution made it possible for communities, activists and public interest lawyers to demand healthy and functioning institutions as part of the “rule of law”. In other countries, the rule of law means little more than that a government actor must have the authority under the law to do something. Most of what has been done here would be inconceivable even to attempt under other constitutional systems — whether elsewhere in Africa, in the West or in Asia.

Every right and provision of the Constitution, and its living meaning in today’s South Africa, is the product of past struggles. But those struggles are unfinished, possibly perpetual. (The “struggle approach” to human rights was powerfully articulated by the late Professor Christof Heyns.)

Constitutional struggle and false revolutionaries

There is a temptation to abandon constitutionalism for populist authoritarianism, present in different forms in all of the other BRICS countries and on the rise globally. It is tempting to say that the Constitution or the law or the courts just get in the way of structural change because we cannot see an easy constitutional path to that change. It is tempting to call for the abolition of the Constitution (even without suggesting what might replace it), to “let it all burn” and see what rises from the ashes. The generation before the Constitution — including my own parents — had to resort to tearing down the state because it was irredeemably evil. That is not our time.

Tearing down a legal text because the world is broken is far easier than imagining the next decade-long struggle to eradicate homelessness and hunger, corruption and poor governance, and far easier than actually waging messy, complex and multi-pronged struggles for social justice.

When can it ever be said that we have achieved “social justice” as envisaged by the Constitution? We may never be able to make this claim, because the process of transforming society under the Constitution may be perpetual (as the late Chief Justice Pius Langa observed), but we can recognise social injustice, and we can confront it — every day.

That is what the Constitution empowers us to do, which many other constitutions around the world do not. If we imagined away the Constitution, as some propose (in good faith and in bad), we would find ourselves weakened in every single major struggle for social justice that we face today, whether we speak of land reform, the basic income grant, a pro-poor budget, healthcare, equal access to quality education, combating racist hate speech and gender-based violence, fighting corruption and so much more. For all the committed public servants and reformist bureaucrats, the Constitution supports their efforts. This is not to say that the text is perfect or particular amendments should not be considered (there have already been 17 sets of amendments), but that, structurally, the Constitution facilitates rather than impedes these struggles.

The Constitution does not wage the struggles for us, nor even guarantee success. What it does is to embody the progress of past struggles, crystallise them in the law, and provide us with tools to take them forward — far more than other constitutions around the world or any imaginary alternative. The most revolutionary act for each of us is to take the next step to advance each new struggle, under the Constitution. Some of these will be the highly visible, collective confrontations of communities and social movements, activists and civil society organisations, invoking the Constitution in the streets, the legislature and the courts to confront privilege, abuse of power and injustice. But many of the most radical acts we can take in the next 25 years under the Constitution will be unseen, unglamorous and unpublicised. For such is the next generation of constitutional struggle forged — in the chorus of collective power and in the quiet acts of individuals. DM/MC

Jason Brickhill is an academic and public interest lawyer based in Johannesburg. He previously headed the Constitutional Litigation Unit of the Legal Resources Centre and is currently a tutor in human rights law and a doctoral candidate at the University of Oxford. He is the contributing editor of Public Interest Litigation in South Africa (Juta 2018).

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